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2023 DIGILAW 1214 (BOM)

Kenneth Manual Remedios v. Police Inspector

2023-06-05

M.S.KARNIK

body2023
JUDGMENT/ORDER 1. Heard Mr. K. Kerkar, learned Counsel for the petitioner and Mr. S. G. Bhobe, learned Public Prosecutor for the respondent. 2. The challenge in this petition filed under Article 226 of the Constitution of India and Sec. 482 of Cr.P.C. is to an order dtd. 5/5/2022 in Special Case No.3/2021 refusing to discharge the accused. The impugned order of the Trial Court dtd. 5/5/2022 reads thus:- Perused records heard arguments. The involvement of the Accused who has his hotel and allowed the victim who is a minor to stay in his hotel along with Varun Nayyar who is alleged to have sexually assaulted the victim who is a special needs child during lockdown period without registering the child victim as staying in that hotel room with family or related by blood. At this state prosecution has made out a prima facie case for framing charges against the Accused under sec 188 of IPC and Sec. 8 and 10 (b) of Goa Children's Act 2003. 3. An offence was registered with the Porvorim Police Station bearing Crime No. 111/2020 under Sec. 363, 376 of IPC, Sec. 8(2) of Goa Children's Act 2003, Sec. 4, 5(k) and 8 of the Protection of Children from Sexual Offences Act 2012 and Sec. 92 of the Rights of Person with Disabilities Act, 2016 against the prime accused Mr. Varun Nayyar. 4. During the course of further investigation, the Investigating Agency noticed that the main accused had taken the victim child in a room of the hotel which is allegedly owned by the present petitioner. The allegation is that the victim was sexually assaulted and abused in the room situated in the said hotel. It is alleged that the hotel was operated during the lock down and the SOP issued on account of COVID-19 was not followed. Accordingly, an offence came to be registered against the applicant in his capacity as owner of the hotel for the offence punishable under Goa Children's Act 2003 for allowing the minor girl to stay in the hotel with the main accused who is not related to the child. 5. Accordingly, an offence came to be registered against the applicant in his capacity as owner of the hotel for the offence punishable under Goa Children's Act 2003 for allowing the minor girl to stay in the hotel with the main accused who is not related to the child. 5. The relevant provision being Sec. 8(10)(b) of the Goa Children's Act 2003 reads thus:- "No child shall be allowed to enter any room of any hotel or establishment which provides boarding or lodging or any similar facility unless the child is registered as staying in that room with family, relatives or person related by blood: Provided that nothing in this sub-sec. will be deemed to apply to reasonable areas such as group of school children accompanied by a teacher(s), children who may be staying with their friends and their families, etc." 6. It is also pertinent to reproduce Sec. 8(10)(d) of the Goa Children's Act 2003 which reads thus:- The Owner and the Manager of the hotel or establishment shall be held solely responsible for any contravention of this Sec. . 7. According to the learned counsel for the petitioner there is nothing on record to indicate that he is the owner of the said hotel. Statement of the receptionist which is at page 67 of the paper book reveals that the prime accused along with the victim went in the room of the hotel, however, the same does not reflect that the applicant is the owner of the hotel. 8. My attention is invited by the learned counsel for the petitioner to the certificate of registration dtd. 30/7/2018 which reads that licence is granted to Mr. Ronald Remedios who is running the business of the hotel. Learned Public Prosecutor submitted that such certificate of registration (page 38 of the paper book) does not appear to be a part of the chargesheet. It is made clear that I am not commenting anything on the merits of the certificate as it is for the trial Court in the first instance to deal with the document and the objection to it if the same is produced on record. 9. It is made clear that I am not commenting anything on the merits of the certificate as it is for the trial Court in the first instance to deal with the document and the objection to it if the same is produced on record. 9. Learned counsel for the petitioner was at pains to point out that in the entire chargesheet, except for the bald assertion of the prosecution that the petitioner is the owner of the hotel, there is absolutely no material produced by the Investigating officer forming part of the chargesheet which would even remotely suggest that the petitioner is owner of the hotel. 10. Reading of the trial Court's order reveals that the learned Judge has proceeded on the footing that the petitioner is the owner of the hotel without examining the submission advanced by the petitioner that he is not the owner of the hotel and that there is no material whatsoever in the chargesheet to support this allegation of the prosecution. It is not that the Court has to conduct an indepth analysis of the materials at this stage. The contention of the petitioner, however, needs to be examined on the touchstone of the well settled parameters laid down while considering an application for discharge. The impugned order therefore, is set aside. The matter is remitted to the trial Court to hear the application for discharge afresh on its own merits after considering the contentions raised on behalf of the petitioner. It is made clear that I have not expressed any opinion on the merits of the contentions. The trial Court to decide the application for discharge afresh on its own merits as expeditiously as possible and in accordance with law. 11. Petition stands disposed of.